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Lord Lucas: My Lords, this noble Lord is always very happy to be clear about what he is after, but it generally takes a little more time than he had on this occasion. I apologise to the Minister and to his officials for having caused them to hunt around needlessly for an explanation which would have eluded them in any case. I shall pass to the officials my notes on this amendment and perhaps we can reach some agreement at another time. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 26:


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The noble Lord said: My Lords, this amendment and the others grouped with it were originally part of the first set of amendments under the original grouping. I have spoken to them in what I said during that debate. I beg to move.

Lord Cope of Berkeley: My Lords, I agree with the Minister that the earlier debate on the definition of "traffic data" covers the point in the amendments. The wording is remarkably similar to the first few amendments we discussed today. By inserting the provisions in Chapter II, they do not have the same effect as in Chapter I. Indeed, in some senses it is the reverse effect. Nevertheless, it is a useful introduction into the Bill of the distinction between "traffic data" and "communications data" even though these amendments mix up the two. It is a useful change to the Bill which I and others appreciate.

Lord Lucas: My Lords, I did not ask the Minister a follow-up question on the extent to which the web will be caught as traffic data. I understood the noble Lord to say that the query will end at the apparatus which contains within it the information on the web page which is sought. The traffic data will contain the identity of a box. It may be quite small, stored in racks of similar boxes in the premises of an ISP. The communications data will contain the physical address of that box. One will be able to deduce the premises the box occupies. From a knowledge of the web, one may be able to deduce either that that website occupies that box exclusively for its own use, that it is part of a much larger website, or that it is a box which stores a number of similar websites. It can be difficult to specify what is in that box. We are talking about an individual box, not simply the premises of an ISP. I shall not know simply that the communications data have gone into, for example, Demon's headquarters; I shall know which box we have accessed.

With regard to my next amendment, it would help me if the Minister would tell me the level of detail regarding the identity of the end point of traffic data under the definition. Given the way ISPs operate, I am unable to satisfy myself as to how it will operate in practice.

Lord Bassam of Brighton: My Lords, perhaps I did not make it plain when we discussed the issue earlier. The tailpiece of the new definition puts beyond doubt, I think, that in relation to Internet communications, traffic data stop at the apparatus within which files or programmes are stored. To clarify the noble Lord's point, traffic data may identify a server but not a website or page.

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 27:


    Page 24, line 11, leave out subsection (5).

On Question, amendment agreed to.

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Lord Bassam of Brighton moved Amendment No. 28:


    Page 24, line 22, at end insert--


("(6A) In this section "traffic data", in relation to any communication, means--
(a) any data identifying, or purporting to identify, any person, apparatus or location to or from which the communication is or may be transmitted,
(b) any data identifying or selecting, or purporting to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,
(c) any data comprising signals for the actuation of apparatus used for the purposes of a telecommunication system for effecting (in whole or in part) the transmission of any communication, and
(d) any data identifying the data or other data as data comprised in or attached to a particular communication,
but that expression includes data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication to the extent only that the file or program is identified by reference to the apparatus in which it is stored.").

The noble Lord said: My Lords, I beg to move.

[Amendment No. 29, as an amendment to Amendment No. 28, not moved.]

On Question, Amendment No. 28 agreed to.

Lord Lucas moved Amendment No. 30:


    Page 24, line 22, at end insert--


("6A) Where the communications data in whole or in part comprises data as defined in section 20(4)(a) or (b), the designated person shall first obtain a certificate from--
(a) any judge of the Crown Court or the High Court of Justiciary;
(b) any sheriff;
(c) any justice of the peace;
(d) any resident magistrate in Northern Ireland; or
(e) any person holding any such judicial office as entitles him to exercise the jurisdiction of a judge of the Crown Court or of a justice of the peace,
stating that access to the communications data is necessary and proportionate having regard to the sworn statement of the designated person as to the circumstances of the matter.
(6B) If the designated person reasonably believes that the special circumstances of the case are such that obtaining a certificate under subsection (6A) would cause an unacceptable delay to the issuing of a notice or authorisation under this section, the designated person may issue such notice or authorisation without obtaining a certificate but must then make a prompt report to the Interception of Communications Commissioner as to the circumstances of the matter.").

The noble Lord said: My Lords, the amendment provides us with an opportunity to discuss the level of authorisation which should be appropriate for traffic data. We are trying to understand what the new definition implies as regards the knowledge which can be gleaned from communications data. In earlier debates, we agreed that location is included and that with modern and future mobile telephone systems it will be possible to track an individual who is carrying a mobile telephone in real time to an accuracy of about 10 metres from one's position in the UK.

We have improved the limit as regards a person's wanderings on the web, but tracking down to an individual's box gives someone a good deal of

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information. These days, a box might contain only 20 or 30 gigabytes of hard disk. That can easily be used in a reasonably complicated website. People at the low end, such as me, share servers, but the next step up, which comes quickly, is to co-locate. You put your own server in an ISP's premises, which will usually involve the box being identifiable. It will be possible to know that someone has visited a site and, given that a site is virtually homogeneous, it will be possible to know what someone has done. You will not be able to track a person inside the shop but you will be able to tell which shops in the street he has entered.

That level of data about someone's life requires a reasonable level of protection. The amendment does not deal with the ordinary data, the reverse directory or the mass volume of requests for communications data which involve identifying the owner of a telephone number, or a website or an individual. It deals with a smaller number of requests for detailed information about a person. Given the increasing ability to identify what a person is up to from the data which will be available under this heading, we should look at a level of authorisation that goes beyond that of the average police superintendent because we shall have a multiplicity of agencies which can look at communications data. Given that we are not dealing with a high volume of cases, I have suggested that the standard recipe of a magistrate's warrant should be required.

I am happy to listen to any suggestions put forward by other noble Lords or the Government. My basic point is that we should apply a higher test to such data than is applied to someone's telephone number. The data are wider and more private and personal than the data to which we are used to giving our average policeman access. We ought to take care of the citizens' liberty. I beg to move.

Lord Phillips of Sudbury: My Lords, I want to identify myself with what has been said by the noble Lord, Lord Lucas. Unless the Government have a clear response to the issues, there is much to justify the amendment.

Viscount Astor: My Lords, I associate myself with the comments of the noble Lord, Lord Phillips. My noble friend's amendment raises an important issue and I look forward to hearing the Government's response.

Lord Bassam of Brighton: My Lords, I believe that we have been round this matter once already. Although I understand the issue of sensitivity, I cannot agree that the level of judicial authorisation should be as the noble Lord suggests. I know that that is the intention behind the amendment.

Perhaps I should repeat the arguments that have been made here and that were made also in another place. I believe that the matter comes down to sheer practicalities. Although I entirely accept the noble Lord's analysis of the capability of the new technology, I do not believe that he fully appreciates how great a problem it would lead to if we were to

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follow the course of action that he suggests. The sheer number of applications for communications data would make it wholly impractical.

The intention behind the amendment is clear and I accept the point about it being a more intrusive form of communications data. I trust that the clarification on offer will be reasonably reassuring.

Earlier in the debate I explained that during the first three months of the year 96.8 per cent of all communications data requests by Her Majesty's Customs and Excise had been for subscriber details--the most basic level of check--and 2.9 per cent of the remainder had been for itemised billing inquiries--


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